*1 proceedings. discipline We find no harmful error these The by Disciplinary the State Board is authorized recommended A. adopt this recommendation and order that Mitchell evidence. We county reprimanded superior court of the publicly Gross be his residence.
It ordered. All the Justices concur. is so September
Decided Bar, E. Franklin, Jr., George Omer W. General Counsel State Bar, Hibbs, Georgia. Counsel State for State Bar of Assistant General THE 39910. BRIGHT v. STATE. Justice.
Gregory, County jury was convicted Bright Randall Ottis Cobb wife, Lynda life Bright, the murder and sentenced to imprisonment. approximately The evidence at trial showed that at 9, 1982, 5:00 a.m. on March while his wife to Cobb transporting Hospital, General lost control of his automobile and hospital premises. drove an down embankment located on When accident, hospital security investigated discovered agents County register pulse. police the defendant’s wife did not Cobb Activity Special officials were notified and members from both the responsible Section traffic fatalities Ultimately dispatched hospital. homicide division1 were seriously disclosed that investigation while defendant was not harmed, Bright body Mrs. had a number of bruises on her and had gunshot upper any police sustained a wound her back. Prior to relatives, questioning the defendant presence stated to police officer, that he and his wife had been an while lying on an outstretched He stated he a terrible sofabed. “smelled smell and saw that was shot.” [his wife] testimony gunshot
Medical indicated the victim died from a The injury pierced lung. which severed the aorta and the left medical autopsy examiner testified that he observed a muzzle shoulder, impression power patterns burn on the victim’s left investigation from the homicide division testified that his initial Detective Sisson Bright’s turned of Mrs. death was to determine whether the case should be over investigation jurisdiction unit or whether it fell under the of the the traffic section. indicating direct contact with the body when fired. The medical examiner testified that some been automobile body bruises on the victim’s sustained however, opinion, accident. It was his that other bruises had occurred beating. to the vehicular accident and were the result of a Based wound, medical gunshot on his examination of the victim’s *2 way” “no have fallen opined examiner that there was the victim could accidentally on a evidence gun injury. and received this Forensic body. “low disclosed a concentration” of cocaine victim’s that, A State testified firearms examiner from the Crime Lab found powder based on his examination of the burns the in with nightgown, weapon murder had been held direct contact on garment performed the when fired. He further testified that tests in weapon the condition” gun “good the murder indicated that was employees not fire of the victim accidentally. and would Fellow eyes; testified the with that victim come work black that the victim had the “bad and temper” indicated defendant had a that him; had, by quality she feared and that of victim’s work admission, victim’s own deteriorated due to difficulties her mar- riage.
The defendant took the witness stand his behalf. own He testified slipped that suffered from a disc and had been unable to work following surgery 1980. He stated that his wife supported the two of them with one full-time part-time jobs, and various as well as all performing family domestic chores and managing finances. The defendant supplemented testified that he the family income raising hunting dogs, his that wife fed and for the cared ani- mals. testified that the victim home returned from
work p.m. at 6:00 on March 1982 and immediately used some cocaine. Much later evening couple discussed the difficulties the victim was with employment. her The de- fendant suggested that perhaps days, he should leave for a few then went their into bedroom and fell He asleep. testified that he awakened to find his wife weapon pointing murder his face. She told him she did not want him go away. A struggle ensued. The defendant wrested the away from the placed victim and it under Later, mattress. when the living room, defendant went into the the victim cocked, pointing gun, hammer couple at him. The struggled again. The defendant took the from tossed it on the open sofa According bed.
lay top down on of the gun weapon and the discharged. The immediately took his wife to Hospital. Cobb General
To rebut testimony defendant’s incapacitation of his physical that, subsequent the State introduced evidence operation, heavy machinery gone he had lifted certain and had on a fishing expeditions. hunting number of instructed, “I the trial court During its in this case. applicable law that are presumptions give you certain given from facts. which the law draws presumption A is a conclusion rebuttable, is, being subject that are are Presumptions the actions of contrary. charge you I by evidence to the overcome presumed to be the mind and discretion are person of sound will, sound mind and discretion products person’s person that a consequences of his probable the natural and presumed is to intend acts, may rebutted. further presumptions but that these accomplish the person that a intends to you presumes the law person If a uses a consequences of acts. probable natural and in which such or deadly weapon instrument the manner or thereby ordinarily employed produce to. death and instrument is kill. presumes human the law the intent to being, causes the death of a may charge you I further that a This be rebutted. intention, but that presumed shall not be to act with criminal fact, you, may upon find such intention jury, triers of *3 conduct, words, the the demeanor and all consideration of the which the accused had been circumstances connected with act for prosecuted. proof upon prove
“I that the of is the State to charge you burden is, fact, beyond criminal in a criminal act a alleged that the act to be Jurors, to charge you specific doubt. I further that a intent reasonable in is an essential element charged commit the crime this indictment is prove beyond that the State must a reasonable doubt. Intent or always question jury ordinarily for the and is ascertained acts a in may many ways, provided Intention and intent be shown conduct. produced finds that it existed from the evidence before them. jury or acts and may proven It be inferred from the circumstances necessary may presumed it when it’s the natural and conduct or consequences of the act.” request in
Subsequently, response to the defendant’s involuntary charged, the trial court “As manslaughter, of law consequences charged you, presumed a man is to intend the natural acts; another with a consequences shooting the natural at Thus, ensues, deadly weapon death. if a be used pistol where death weapon in a homicide in usual and natural manner which such result, intention kill produce presumption would that of an If the evidence should disclose an unintentional use a would arise. in which such deadly weapon the usual and natural manner death, firing weapon produce would such as an unintentional
443 pistol if possession, or a tussle over its possession kill, in his was not an assault making with intent involuntary involved, then the offense of manslaughter would be you so find.”2
The defendant argues portion italicized of this (99 violates Montana, Sandstrom v. 2450, U. S. 510 61 LE2d 39) (1979) (1) in that it mandatory creates a presumption as as to the element of intent and it impermissibly shifts the burden of persuasion to him.
While in its initial charge the trial court stated that
the law
presumes the intent
to kill
person
deadly
where a
uses a
manner ordinarily used to
thereby
death,
cause death and
causes
trial court
charged
also
presumption may
be rebutted. The
trial court clearly charged the jury that the State bore the burden of
proving beyond a
intent;
reasonable doubt
the essential element of
that a
shall not be presumed
intent;
to act with criminal
intent
is always
jury.
for the
Having received this background prior
complained-of
charge, we do not believe a
juror
reasonable
would have concluded
that the law
required
possessed
find the defendant
the intent
kill
the victim upon proof that the defendant shot the victim. It is
our determination that the complained-of presumption in this case is
permissive rather
mandatory.
Zant,
than
373,
Cf. Wilson v.
249 Ga.
(290
442)
(1982);
State,
SE2d
Johnson v.
SE2d Nor do we complained-of find that charge violated due process that it shifted the persuasion burden of on the element of *4 intent to the defendant. The of the language require does not the defendant prove lack of “by intent to commit murder some quantum proof,” of only but indicates if the evidence showed an deadly unintentional of firing weapon, a the would not be permitted Rather, event, to draw the presumption. in that the jury would consider involuntary the law of manslaughter subsequently as gave charge, including challenged The trial court language, this the a second time response jury request to a made deliberation of the case.
charged court. the trial argues the trial Defendant also court erred admit- ting he to Officer Cook at Cobb General statements made while Hos- pital. approximately Roper At Officer of the crimes- 5:15 a.m. County against-persons Depart- division of the Cobb Police Upon to Cobb General. ment was summoned arrival he was in- the victim was dead and that formed that the defendant had been emergency that the Unaware for treatment. room taken to the Roper dispatched the victim. officer to attend shot, a fellow had been Roper open the with conversation” “not the officer to cautioned indicating “any were made if statements defendant, rights Miranda crime,” the defendant to advise pointed As 1602,16 LE2d U. S. 436 presence relatives, of above, stated the defendant out attending reclining while had an officer, his wife had that he and she the ask smell and saw sofabed, a terrible that he “smelled Roper this, he asked aware of was made When Officer was shot.” want to would as “the detectives” relatives to leave questions. the defendant some approximately Sisson, officer another 6:15 a.m. Detective
At hospital. He was unit, at the arrived Roper the defendant’s aware of and made Officer briefed statement. Miranda the defendant then advised Detective Sisson specifically warnings an wanted the defendant and asked attorney; responded Sisson not. Detective that he did investigating explained that he was bringing “Why you inquired, her to the were death and then hospital?” replied, When was shot.” “Because she injured, Sisson asked how Detective responded answer further not wish to that he did point. Questioning questions. at that ceased Activity Special Sgt. During Section time Cook from involving police department accident department policy testified that it is defendant’s car. He involving thoroughly investigate fatalities all traffic accidents finally interviewing any free to he was When of the survivors. passed from the time an hour and a half Sgt. spoken the time of At to the defendant. Detective Sisson had security room of interview, the defendant was Cook’s brief present. hospital security agent hospital. Sisson and a Detective earlier statements that he was not aware Cook testified officers, nor was or other to Detective Sisson defendant had made precautionary measure, shot. As a the victim had been aware that asking warnings before however, he administered Miranda *5 At the time questions defendant.3 Miranda warnings expressed given, “willingness talk” with Detective Cook. The defendant stated to Cook that he had found the victim unconscious, dragged her to his car and “made an emergency run” to hospital where he lost control of his automobile. The defendant then refused to make a further statement and questioning ceased. argues the trial court erred in sup- not pressing statements he made to Officer Cook. He argues that his right to remain silent was violated when Cook asked him about the accident ninety after he had minutes earlier informed Sisson he did not any want to answer questions. more
We find that
defendant
raises is
controlled
Michigan Mosley,
313) (1975)
In Mosley the
robberies,
defendant was
arrested
two armed
rights
advised
and interrogated. When he
declined
answer
inquiries,
further
questioning
all
closed. Two hours later another
detective,
acting
officer,
on
given by
information
the arresting
advised the
rights
defendant of his
questioned
Miranda and
about an unrelated crime. The defendant made a
statement
implicating his
involvement
the second crime which he
unsuccessfully sought
In
suppress
affirming
at trial.
the trial
action,
court’s
Supreme
Court
Mosley’s right
ruled that
to cut off
questioning
fully respected,
and that when the second
shot,
Cook testified that while
suspected
he was not aware the victim had been
might
body
she
have died
to the automobile accident as her
had “a number of
scrapes which did not hleed.”
Mosley
carefully
rights,
officer advised
of his Miranda
“was
opportunity
options.”
full and fair
to exercise these
423 U. S.
given subsequent
questioning
Mosley’s
105. The
did not undercut
at
(the
officer’s) inquiries.
decision not to answer
first
423 U. S.
previous
Important
police
to the court’s decision were the facts that the
interrogation upon request
did not refuse “to discontinue the
or ...
*6
[persist]
repeated
[Mosley’s]
efforts to wear down
resistance and
Instead,
him change
make
his mind.”
We note this case that when the defendant indicated to Sisson, Cook, Officer and later to Officer that he wished to terminate interviews, questioning immediately In ceased. no instance did indicate he wished to attorney consult an even when option this specifically available, was apart made from the Miranda warning. It is also clear that while the officers were event, i.e., same death, inquiry Officer Cook’s was limited to whether her death was a vehicular homicide or whether the case should be transferred to the unit. At the time of questioning, Officer Cook was unaware the victim had been shot and that Officer Sisson previously questioned regarding his wife’s death. There support is no evidence to allegation that the engaged officers in an attempt to “wear down the Furthermore, defendant’s resistance.” lapse there was a time of one and one-half hours between the interviews. Had Officer Cook been interview, aware of the earlier say we cannot that it would have been him inquire unreasonable for whether the changed defendant had his mind period and wished to make a statement. We conclude, under these circumstances that the right to cut off questioning was “scrupulously honored.” disagree
We with the defendant that Edwards v. su- pra, controls this case. That case is limited to holding that “when an accused has right present have counsel invoked dur- ing custodial interrogation, a valid waiver of right cannot be established showing only that he responded police- to further initiated custodial interrogation even he has been advised of his rights.” 101 SC 1880 at 1884. No request for counsel was made in this case. We decline adopt the rule suggested by defendant which would amount perse made, to a exclusion of statement circumstances, by an accused after the right to remain silent has been —— Bradshaw,-U. (103 Oregon 2830, invoked. See v. S. 77 405) (1983). LE2d
Judgment All affirmed. the Justices concur.
447 September Decided
Jimmy D. Berry, Spraley, appellant. Thomas E. Charron, Mallard, Thomas J. Attorney, District Jack E. General, Assistant Attorney, Bowers, Attorney District Michael J. Mary Westmoreland, General, Beth Attorney appellee. Assistant Justice, Chief concurring.
Hill, Although case,1 concur in judgment under the facts of this my opinion charge complained of Division should not given many State, because in cases it could be error. See Hosch v. (271 817) (1980). Ga. 417 SE2d Hosch, charge using
In
we
disapproved the use of a similar
word
of the word “infer.”
“presumption”
suggested
substitution
State,
Hosch,
(4),
Hosch v.
n. 2.
39934. RICHARDS v. THE STATE. Justice.
Clarke, Richards was convicted of the murder of Spivey Macie and sentenced to imprisonment. life He appeals, and we affirm.
Richards went to the Corn, victim’s trailer looking Vivian victim’s sister-in-law. The victim’s husband had left for work and the asleep. was still bedroom, Richards put entered her his hand over her mouth her, and awakened saying that wanted to talk with her without waking her two children. As talked she laughed him told she had responsible been breaking up relationship between Richards Vivian. According Richards’ here, possibilities presented. Under the evidence two Either the defendant intentionally back, lay shot the victim in the or the victim down on the which was (i.e., hand). on the bed not was in circum Under these stances, (as finds). charge given is not erroneous the court